Vestar/Kimco Tustin v. Sesbar CA4/3

Filed 5/30/14 Vestar/Kimco Tustin v. Sesbar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

VESTAR/KIMCO TUSTIN, L.P.,

Plaintiff and Appellant, G048831

v. (Super. Ct. No. 30-2011-00514253)

AYOUB SESAR, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Reversed. Bewley, Lassleben & Miller and Ernie Zachary Park for Plaintiff and Appellant. Ghods Law Firm, Mohammed K. Ghods, William A. Stahr and Ruben Escobedo III for Defendant and Respondent. * * *

The trial court sustained defendant Ayoub Sesar’s demurrer to a breach of lease cause of action and overruled his demurrer to a breach of guaranty cause of action. Plaintiff Vestar/Kimco Tustin, L.P. (Vestar) subsequently filed a voluntary dismissal of its complaint on the date of trial. The court thereafter awarded Sesar attorney fees in connection with the breach of lease cause of action. Vestar appealed, contending the court erred in sustaining the demurrer to the breach of lease cause of action, and as a result, Sesar was not a prevailing party entitled to attorney fees. We agree and reverse. I FACTS AND PROCEDURAL BACKGROUND Vestar filed its initial complaint against Kboby, Inc., Syed H. Miremad; Pei Chun Lin; Ayoub Sesar,1and Does one through 20. The complaint alleged two causes of action. As to Kboby, Inc. and Does one through 10, Vestar alleged a cause of action for breach of lease. As to Sesar, Miremad, Lin, and Does 11 through 20, the complaint alleged breach of guaranty. Vestar filed a first amended complaint in response to Sesar’s demurrer to the initial complaint. Sesar demurred to the four-page first amended complaint, which again alleged causes of action for breach of lease and breach of guaranty. The court sustained the demurrer to the breach of lease cause of action without leave to amend and overruled the demurrer to the breach of guaranty cause of action. Approximately eight months later, on December 4, 2012, the clerk of the court entered Vestar’s voluntary dismissal without prejudice on the date of trial and after counsel met with the assigned trial judge in chambers. Sesar subsequently filed a motion for attorney fees based on provisions in the lease and the guaranty. (See Civ. Code, § 1717; all undesignated statutory references are to the Civil Code.) Vestar opposed the motion, contending Sesar’s demurrer to the